Possession of Even Large Amount of Controlled Substance Isn't §2L1.2 "Drug Trafficking" If Statute Has No Intent-to-Distribute Element

Lopez-Salas picks up where Arce-Vences v. Mukasey left off. Arce-Vences, as you'll recall, is the case from last month holding that simple possession of even a large quantity of a controlled substance is not an aggravated felony under Lopez v. Gonzales. The court essentially rejected the idea that the amount of drugs can be used as a proxy for an intent to distribute if the statute of conviction lacks such an element. Although Arce-Vences involved the "drug trafficking" portion of the "aggravated felony" definition, its holding looked to be equally applicable to various and sundry drug offense definitions scattered about the Sentencing Guidelines and the U.S. Code. But we no longer have to rely on Arce-Vences when it comes to the "drug trafficking" definition applicable to the 12- and 16-level enhancements in guideline §2L1.2, because now we have Lopez-Salas for that.

At issue here was Lopez's prior North Carolina conviction for conspiring to transport between 100 and 2000 pounds of marijuana under N.C. Gen. Stat. § 90-95(h). The statute, like similar statutes from other states, does not include an intent-to-distribute element; instead, it imposes progressively higher penalties based on the amount of the drug possessed or transported, effectively presuming an intent to distribute from the large drug quantity.

The Government argued that because the state statute presumes an intent to distribute, it's a §2L1.2 drug trafficking offense. The court disagreed, joining the majority side of a circuit split on this issue.

The Eleventh Circuit agrees with the Government. It has held that a court isn't limited to examining the elements of the prior offense when making the "drug trafficking" determination, so an effective presumption of an intent to distribute, like the one created by the North Carolina statute, makes the offense "drug trafficking." Otherwise, say the Elevens, the guideline would produce anomalous results.

Three other circuits---the Sixth, Ninth, and Tenth---have held otherwise. Like the Fifth Circuit, those courts use the Taylor categorical approach and refer only to the elements of a prior conviction when determining whether the offense constitutes §2L1.2 drug trafficking. And if there's no intent-to-distribute element, then the offense doesn't fit within the drug trafficking definition. The potentially anomalous results from this approach cannot "justify a departure from the ordinary standard of review." (Lopez-Salas found Judge McConnell's opinion for the Tenth Circuit in United States v. Herrera-Roldan "particularly persuasive" on this question.)

So the court agrees with the majority and holds that Lopez's conviction under § 90-95(h) isn't a §2L1.2 drug trafficking offense. But then the court goes out of its way to point out that the Guidelines are only advisory, and that Booker and Gall give a district court latitude to impose a non-Guidelines sentence when the circumstances warrant it. And hint-hint:

We have previously held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence.” Smith, 440 F.3d at 709. Indeed, in United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir. 2006), we upheld an upward variance in a non-Guidelines sentence for a past conviction without regard to whether the prior offense “technically” qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii).

True enough (although the sentence in Tzep-Mejiawas arguably a downward variance). But don't forget that sauce for the goose is sauce for the gander. A sentencing court can also consider the relatively minor nature of a prior conviction that "technically" qualifies as drug trafficking---as in the case of an addict who sells to support his own habit and picks up a distribution conviction for selling a tiny quantity to an undercover cop---and vary downward on that basis.

This appeal prinicipally concerns the sentences of two defendants involved in an alien-smuggling conspiracy: Maria De Jesus-Ojeda and Jose Geronimo-Mendez. Geronimo would bring aliens across the Rio Grande and take them a stash house on the U.S. side. After a couple of weeks, others would guide the aliens on foot through the South Texas brush, presumably to points north. De Jesus collected smuggling fees through the receipt of wire transfers, but beyond that the opinion isn't clear about the extent of her role in the operation.

The court affirms the sentences, which were based in part on enhancements for reckless endangerment and the death of an alien. In the course of doing so, the court takes a very broad view of foreseeability, which you'll need to keep in mind when it comes to advising clients of their potential sentencing exposure in these types of cases.

De Jesus's Guidelines ChallengeDe Jesus's appeal concerned the reckless endangerment and death enhancements found in the alien smuggling guideline, §2L1.1. She got both enhancements due to the fact that an alien died from exposure and dehydration during a trek through the brush with inadequate water supplies in August 2003. She argued that she should not have received the enhancements because 1) nothing she did created a substantial risk of death or serious bodily injury, and 2) she should not be held responsible for the acts of others in the operation because she had no knowledge of the methods that they used, their methods and the risks created were not reasonably foreseeable to her, and the gross negligence of the guides was a superseding cause of the alien's death and was also not foreseeable to her.

The court disagreed. It rejected De Jesus's gross negligence argument, reasoning that

[i]f gross negligence is always a superseding cause, and therefore forecloses foreseeability, then subsection (b)(5) would rarely, if ever, apply to any defendants other than those who actually “intentionally or recklessly creat[ed] a substantial risk of death or serious bodily injury to another person.”

Under the relevant conduct provisions of guideline §2L1.1, the only question is whether the conduct of others involved in jointly undertaken criminal activity is reasonably foreseeable. And here, the court holds that it was, relying almost entirely on the general nature of smuggling operations in South Texas:

De Jesus-Ojeda personally received payments for the smuggling of 24 unlawful aliens during July 2003. It was reasonably foreseeable by her, as the district court found, that the smuggling of the aliens would occur during the summer. It is true that there is no evidence that De Jesus-Ojeda knew precisely how the smuggling, transporting, and harboring would occur, but given the nature of unlawful alien smuggling operations in the area of Texas in which the offenses for which she was convicted occurred, the methods used by those in concert with her were reasonably foreseeable. There was evidence that aliens are frequently moved on foot through the hostile terrain surrounding the Border Patrol Checkpoints in this part of South Texas to avoid detection. It is not unforeseeable that when this occurs in the hot summer months, heat exhaustion may occur, even if adequate water supplies are provided. It is also foreseeable that aliens traveling on foot may not be able to carry enough water to sustain them throughout the trip, or that the smugglers may give them inadequate water supplies along the way. There was evidence that ten or twelve illegal aliens die in the brush in this area each year while attempting to avoid detection entering this country. Methods such as those used by others involved in the plan or scheme jointly undertaken with De Jesus-Ojeda are all too common in the geographic areas including and surrounding Harlingen, San Benito, Hebbronville, Falfurrias, and Sarita.

For the same reasons, the court affirmed the death enhancement, as well.

Geronimo's Statutory ChallengeGeronimo did not challenge the guidelines enhancements in his case. For some reason he challenged similar statutory enhancements found in 8 U.S.C. § 1324(a)(1)(B)(iii) and (iv), even though he was sentenced within the unenhanced statutory maximum. The enhancements were were based on jury findings that, “'during and in relation to' each violation, Geronimo-Mendez 'caused serious bodily injury to at least one alien,' 'placed in jeopardy the life of at least one alien,' and that a 'person died as a result of the conduct.'”

Geronimo argued that, like the relevant conduct guideline, the statutory enhancements "have an element of forseeability[.]" The court assumed, without deciding, that foreseeability is required. It then held that the death and the danger were foreseeable to him for the same reason they were foreseeable to De Jesus. The court also found the danger enhancement supported by the fact that Geronimo personally brought one of the aliens, who could not swim, across the Rio Grande in an inner tube in deep water.

California "Grand Theft from a Person" is an ACCA "Violent Felony"

The issue: is "grand theft from a person" under Cal. Penal Code § 487(2) a "violent felony" under the Armed Career Criminal Act? The court answers "yes," holding that it's a violent felony under the "otherwise clause" in 18 U.S.C. § 924(e)(2)(B)(ii), which includes offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." Hawley follows the lead of a Ninth Circuit case which reasoned thusly:

The California Penal Code defines grand theft from a person as “theft committed . . . when the property is taken from the person of another.” [Since 1897,] California courts have interpreted this statute to require that “the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession . . . .”

. . . .

By definition, every conviction for grand theft from a person involves direct physical contact between the perpetrator and the victim; the property must be actually attached to or carried by the victim when it is taken by the thief. The thief must not only come near his victim to commit his crime; he must reach out and touch that victim. When he confronts the victim and seizes property from the victim’s person, the criminal creates a serious risk of physical injury to another; the victim might resist, or a bystander intervene, and a struggle ensue. Even though the thief might sometimes, by stealth, avoid immediate detection by his victim, he risks such a confrontation at every encounter. Viewed ex ante, the thief’s conduct presents a serious potential risk of physical injury to another.

The court also pointed to United States v. Hawkins, a Fifth Circuit case holding that a similar Texas theft statute is a "crime of violence" under guideline §4B1.2, which contains a similar "otherwise clause."

It's odd that the court would issue this decision right now, since the Supreme Court is poised to explicate the meaning of the "otherwise clause" in Begay v. United States. It's possible that the decision in Begay, which we'll have no later than the end of June, will require a different analysis than the one Hawley adopts.

Tuesday, January 22, 2008

No Exigency Justified Border Patrol Agents' Warrantless Entry Into House

The Fourth Amendment has some life left in it yet, even on the frontera.

Several Border Patrol agents were tracking some suspected illegal immigrants through the South Texas brush one late July night. According to one of the agents, the temparature was in the 90's that evening, and after awhile the appearance of the tracks suggested that the aliens were becoming fatigued.

After four or five miles, the tracks led the agents to Troop's house. The agents knocked and announced their presence, but no one would answer the door. One of the agents shined a flashlight through an open window and saw two men apparently sleeping on a bed. There was disputed testimony over whether the agent reached through an open window and shook one of the men's feet. After getting no response to their knocking, shouting, and (possible) poking, two agents climbed through the window, ostensibly to see if the men needed medical assistance. They then let the other agents into the house. Troop and several illegal aliens were arrested.

Troop was charged with conspiring to transport an illegal alien, in violation of 8 U.S.C. § 1324. The district court denied his motion to suppress the fruits of the agents' warrantless entry into his home (i.e., the aliens), "reasoning that the possibility that the suspected aliens were in need of medical attention created exigent circumstances sufficient to justify the warrantless entry into Troop's house." Troop appealed, following his conviction at a stipulated bench trial.

The Government argued that "exigent circumstances existed because the suspected aliens might have needed immediate medical attention[,]" pointing to "the high temperature that night, the evidence the suspected aliens were fatigued, and the failure of anyone inside Troop's house to respond when the agents knocked on the door and window."

The court of appeals disagreed. It held that the aliens' apparent fatigue after walking a long way in ninety-degree heat did not alone constitute exigent circumstances, pointing out the lack of other objective evidence of distress, "such as loss of blood, signs of physical illness, or evidence that an individual had to be carried or dragged[,]" or "any evidence of what type of medical distress is typically produced by a four-mile walk in the heat at night, which might have indicated that it was probable that the suspected aliens needed aid." The court trenchantly observed that "[t]o hold otherwise would permit warrantless entries into homes in which an occupant had recently taken a long walk in the Texas summer and become tired as a result. The Fourth Amendment requires more."

As for the knocking, the court concluded that given the lack of "objective evidence of physical distress, the failure of anyone to respond to the agents' knocking . . . also becomes insufficient to create exigent circumstances," finding it "hardly surprising that the aliens chose not to answer the door, given that Border Patrol agents were waiting to arrest them on the other side."

The Government also argued that the agents were attempting a "knock and talk" of the sort permitted by Fifth Circuit case law. But the court responded that if the K&T strategy fails, then agents should retreat to conduct further surveillance or to get a warrant, not simply barge into the house.

A final note: although this decision is unquestionably correct, even on the most favorable and deferential view of the agents' testimony, it probably didn't help the Government that the proffered exigent circumstances had a whiff of the post hoc:

Although we are reluctant to second guess the actions of law enforcement, it is telling that in this case Agent Lira was the only agent to actually testify that he was concerned for the well-being of the suspected aliens—and that concern did not arise until Agent Lira reached in a window and grabbed a suspected alien, which was after the search had already exceeded the bounds of the Fourth Amendment. None of the other agents ever stated that they had a concern that the suspected aliens might need immediate aid. While the subjective motivations of the agents are not controlling, see Brigham City, 126 S. Ct. at 1948, it does give us pause that none of these men, who are trained to locate and aid aliens in need of help, appear to have believed that these aliens were in need of assistance based on the evidence of fatigue and failure to respond to knocks at the front and back doors.

Alien Gets Obstruction & Loses Acceptance for Requesting Interpreter at Sentencing, After Not Asking for One at Earlier Hearings

Juarez, a Mexican citizen, was arrested for illegal reentry. At his initial appearance, he told the magistrate judge that he could understand and speak English. Nevertheless, when the magistrate asked Juarez if he wanted an interpreter, Juarez answered "If she's here, yes." A few days later, Juarez participated in his detention hearing without an interpreter. "From this, the district court inferred that the magistrate judge and Juarez-Duarte's Spanish-speaking attorney had determined that Juarez-Duarte did not need an interpreter." Juarez did not have an interpreter at his arraignment.

Juarez later decided to plead guilty. At his rearraigment, he did not request an interpreter and answered "yes" when the district judge asked him if he could "read, write and understand and speak the English language proficiently." Juarez also answered, in response to the court's question, that he had read the factual basis for his plea before he signed it. At one point, Juarez said that he was confused about the indictment's reference to his prior conviction for cocaine distribution. "The district court determined that the distribution charge was surplusage in the indictment, and that the prior conviction would increase the applicable statutory penalty range."

At his sentencing hearing on September 30, 2005, for the first time, Juarez-Duarte requested an interpreter, claiming that he did not clearly understand everything that had happened during the rearraignment. The district court expressed concern about the expense and delay of using an interpreter when there is no need and inquired why he had not requested one at any previous hearing. Defense counsel said that Juarez-Duarte’s past experience before the district court led him to request an interpreter because although he understood the prior proceedings “fine,” he wanted an interpreter at his sentencing hearing to understand “well.” The district court opined that the interpreter was not necessary because Juarez-Duarte had not required one at his detention hearing or at either of his prior arraignments, and he seemed to communicate and understand English well when he pleaded guilty. However, due to concern that his request would raise an issue as to the validity of his guilty plea, the district court set aside the plea, warning Juarez-Duarte that an improper request for an interpreter could have an effect on his sentencing.

At the interpreter-assisted rearraignment, the district judge instructed the probation officer to include findings and recommendations in the PSR as to whether Juarez should receive an acceptance-of-responsibility adjustment or an obstruction enhancement.

After the PSR interview, which was conducted in English, the probation officer recommended a 2-level obstruction enhancement for "providing materially false information to a judge regarding his need for an interpreter," as well as denial of acceptance. The resulting 5-level swing raised Juarez's Guidelines range from 46 to 57 months, to 78 to 97 months. The district court adopted the PSR's recommendations, over Juarez's objection, and sentenced him to 87 months' imprisonment. The court found that Juarez willfully obstructed the administration of justice by "insisting that he needs an interpreter when in fact he does not," based on the facts outlined above as well as the court's conjecture that Juarez "might be creating a record to support a contention that he did not understand what he was doing when he pleaded guilty." As for materiality, the district court said that it had to "redo" Juarez's guilty plea "in an abundance of caution."

Juarez appealed, challeging the obstruction and acceptance findings. Surprisingly, the court of appeals found no clear error in the district court's findings. It acknowledged that the district court's actions in this case "might make other defendants hesitant to request an interpreter," but sanguinely expressed "trust [in] the district courts, in their discretion, to make sufficient factual findings of willful intent to obstruct justice, as well as sound credibility determinations regarding the legitimacy of the defendant’s request for an interpreter, to prevent impermissible chilling."

Juarez also challenged the reasonableness of his sentence, arguing that illegal reentry is analogous to a simple trespass. The court rejected that argument, too, concluding that Congress considers illegal reentry after conviction for an aggravated felony to be "an extremely serious offense punishable by up to twenty years in prison," and that Juarez had failed to rebut the presumption of reasonableness afforded his within-Guidelines sentence.

Fives Restore Inter-Circuit Harmony, Hold Sixteen is the Age of Consent for Generic Statutory Rape

"Statutory rape" is one of the enumerated crimes of violence subject to a 16-level enhancement under the illegal reentry guideline, §2L1.2. Back in October the Ninth Circuit held, in United States v. Rodriguez-Guzman, that the age of consent for generic statutory rape is sixteen. That meant that California's statutory rape provision (Cal. Penal Code § 261.5(c)), which sets the age of consent at eighteen, is broader than generic statutory rape. At the time, that opinion conflicted with a couple of unpublished Fifth Circuit decisions which held that an offense under § 261.5(c) is subject to guideline §2L1.2's COV enhancement. Rodriguez-Guzman also appeared to conflict with United States v. Alvarado-Hernandez, a published Fifth Circuit opinion affirming the COV enhancement for a conviction under the Texas statutory rape provision, which sets the age of consent at seventeen.

That conflict has evaporated with yesterday's decision in Lopez-DeLeon. Lopez had prior California convictions for "sexual intercourse with a minor" under § 261.5(c), and for "lewd act with a child under the age of 14" under a separate statute. The court first held that "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" because that's the age used by 33 states, the District of Columbia, the U.S. Code, and the Model Penal Code. It then went on to hold, as the Ninth Circuit had, that "[b]y setting the age of consent at eighteen rather than sixteen, § 261.5(c) criminalizes some conduct that would not be criminalized under the generic, contemporary meaning of statutory rape[,]" and "[t]hus, § 261.5 (c) is overly broad for the purposes of defining statutory rape pursuant to" guideline §2L1.2's 16-level COV enhancement.

Nevertheless, the court held that Lopez was still subject to the enhancement, because the record of his prior convictions established that the victim of his crime was less than fourteen years old. Although it's a little unclear from the opinion, Lopez's indictment apparently only charged the lewd conduct offense. The charging document was orally amended at his plea colloquy to include a § 261.5(c) charge, evidently as to the same victim. Lopez pleaded nolo contendere to both the § 261.5(c) and the lewd conduct, and was sentenced only on the § 261.5(c). Because an element of the lewd conduct offense is that the victim be under fourteen, Lopez's nolo plea admitted that the victim was under fourteen as to the § 261.5 charge, as well. That makes it generic statutory rape.

Okay, that resolves the conflict between the Fifth Circuit's two earlier unpublished opinions on § 261.5(c), and Rodriguez-Guzman. But what about Alvarado-Hernandez, you say? It turns out that Lopez-DeLeon is entirely consistent with that decision. Alvarado-Hernandez didn't actually declare what it believed to be the age of consent for generic statutory rape. Although it said that "[t]he Texas statute at issue meets a common sense definition of 'statutory rape[,]'" it went on to point out that the fact Alvarado's "prior conviction was based on an indictment that charged him with having consensual sexual intercourse with a fourteen-year-old victim, sufficient to meet a common-sense as well as a generic, contemporary definition of statutory rape." So the record of the prior conviction established that the victim was less than fourteen years old, just as it did here. Plus, because of the way the Texas statute is structured, the less-than-fourteen allegation in Alvarado's indictment made fourteen the relevant age, not seventeen. So Alvarado-Hernandez wasn't really confronting the question of whether an age of consent of seventeen fits within generic statutory rape.

Monday, January 07, 2008

Cert Denied in Pineda-Arrellano; What Now of Challenges to Almendarez-Torres in the Fifth Circuit?

Today the Supreme Court denied cert, without comment, in Pineda-Arrellano v. United States. As those of you who handle lots of illegal reentry cases know well, Pineda-Arrellano is the case in which a Fifth Circuit panel opined, in dicta, that a challenge to Almendarez-Torres no longer serves as a legitimate basis for appeal.

This is a disappointing development, as it leaves defense counsel in an untenable position. On the one hand, appointed counsel are obligated to pursue non-frivolous issues for a client who exercises his right to appeal, and a majority of the justices on the Supreme Court have said at one time or another that Almendarez-Torres was incorrectly decided and should be overruled. On the other hand, counsel who carry out this obligation have to worry about lost credibility at best, and sanctions at worst. We'll just have to see how things pan out from this point forward.

Simple Possession of Even Large Quantitites of Drugs Is Not an Aggravated Felony (or a Drug Trafficking or Controlled Substance Offense)

First, some background for those of you who aren't familiar with the Texas controlled substance scheme: Texas has no statute that include the elements of possession of marihuana with the intent to distribute it. It does for other controlled substances, but not for marihuana. Instead, there's a statute prohibiting delivery of marihuana, and a separate one criminalizing simple possession of marihuana, with penalties increasing in tandem with the amount of marihuana delivered or possessed.

Arce had a prior Texas conviction for possession of between 50 and 2000 pounds of marihuana. The question here is whether that's an "aggravated felony" under our old friend 8 U.S.C. § 1101(a)(43).

The answer: no. The court observed that under the Supreme Court's decision in Lopez v. Gonzales, "to constitute an aggravated felony . . . a prior state offense must either involve some sort of commercial dealing or be punishable as a federal felony under the Controlled Substances Act." Arce's prior conviction for simple possession, even of 50 to 2000 pounds of marihuana, doesn't pass either test. Simple possession doesn't involve commerical dealing, and "[e]ven though possession of a large amount of drugs may support a conviction for the federal felony of possession with intent to distribute, simple possession is only a misdemeanor under federal law." And although the opinion doesn't mention it, that's exactly what the Supreme Court suggested in Lopez (see 127 S. Ct. 625 nn.4, 10 & accompanying text).

But don't make the mistake of thinking that Arce-Vences is limited to the § 1101(a)(43) aggravated felony definition. Its holding---that simple possession of a large quantity of a drug is still just simple possession---should also apply to other drug offense definitions that exclude simple possession: §2L1.2 ("drug trafficking offense"), §4B1.2 ("controlled substance offense"), and 18 U.S.C. §924(c)(2) ("drug trafficking crime"). Arce-Vences should also put to rest any lingering concerns about the reasoning in the since-withdrawn panel opinion in United States v. Gutierrez-Bautista, which held that a state drug statute encompassing simple possession of more than 28 grams of methamphetamine, and incongruously captioned "trafficking," was categorically a §2L1.2 DTO because the statute essentially treated drug quantity as a proxy for an intent to distribute. The replacement opinion in Gutierrez-Bautista relied on entirely different reasoning to support the enhancement in that case, so Arce-Vences is the controlling authority on this issue.